Cop-Rink Agencies Limited & another v Kayser Investment Limited (Environment and Land Appeal E216 of 2024) [2025] KEELC 3440 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to pause enforcement of an order releasing Kshs. 4 million because the appellants could not show they would suffer unrecoverable loss.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain the application given the alleged lack of leave to appeal
The jurisdictional objection was rejected because it had already been raised and determined in ELC MISC No. E204 of 2024, whose decision remains in force
The respondent argued no automatic right of appeal lay without leave. The court held that this exact issue was raised and dealt with in ELC MISC No. E204 of 2024, where the court allowed the appellants to file a memorandum of appeal. Re-opening that question would amount to the court sitting on appeal over its own decision, which procedure forbids. The decision remains in force and the application was properly founded on it.
Whether the affidavits sworn before Jotham Okome Arwa were defective
The contention failed for lack of evidence; the ruling showed Ambrose Rachier, SC, not Jotham Arwa, was appointed administrator ad litem
The respondent alleged the affidavits were defective because they were commissioned by Jotham Okome Arwa, said to be connected with the administration of the late Mr. Wandago Kwach SC's firm. The court found the contention was not clearly or fairly brought out, and that the ruling in fact appointed Mr. Ambrose Rachier, SC as administrator ad litem rather than Mr. Jotham Arwa. There being no evidence of the alleged defects, the argument failed.
Whether stay of execution pending appeal should be granted
Stay refused because substantial loss was not demonstrated; the appeal's arguability alone was insufficient
Applying Order 42 Rule 6(2), the court found no undue delay since the application flowed from the court's directions in ELC MISC No. E204 of 2024. On substantial loss, the appellants' fears centred on sums deposited in court, but they failed to show the respondent was incapable of satisfying the decree if the appeal succeeded. Although the memorandum of appeal raised arguable issues, without proof of substantial loss that could not be recovered, stay could not issue.
Legal principles established
#- Stay of execution pending appeal requires demonstration of substantial loss, that the application was made without unreasonable delay, and security for the due performance of the decree
- In deciding whether to grant stay, the court must weigh the rights of the aggrieved party to appeal against the right of the decree holder to the fruits of the judgment
- A court will not sit on appeal over its own prior decision on jurisdiction which remains in force
Court orders
#- 1.The notice of motion dated 13th December, 2024 is dismissed
- 2.Each party to bear its own costs
- 3.Further mention on 25th June, 2025 for directions in regard to the appeal
- On appeal from
- Chief Magistrates' Court, Milimani
- CMCC No. 81 of 2020
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Article 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cop-Rink Agencies Limited & another v Kayser Investment Limited (Environment and Land Appeal E216 of 2024) [2025] KEELC 3440 (KLR)", Case Analysis (2025). Ruling on Notice of Motion dated 13th December, 2024 (appeal from Milimani CMCC No. 81 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3440/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.